State Consumer Disputes Redressal Commission
Sri Debasish Mitra vs The New India Assurance Co. Ltd. on 28 April, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/09/18 DATE OF FILING: 16.01.2009 DATE OF FINAL ORDER: 28.04.2009 APPELLANT Sri Debasish Mitra S/o Late Chitta Ranjan Mitra R9/1, Sarat Pally P.O. Medinipur, P.S. Kotwali Dist. Paschim Medinipur RESPONDENTS 1) The New India Assurance Co. Ltd. 87, Mahatma Gandhi Road Fort Mumbai 400 001 2) The Branch Manager The New India Assurance Co. Ltd. Kharagpur Branch, O.T. Road, Inda, P.O. Kharagpur, P.S. Kharagpur Town Dist. Paschim Medinipur 3) Ashok Leyland Finance Ltd. A Division of Indus Land Bank Ltd. 41, Shakespeare Sarani Kolkata 700 017 4) The Branch Manager Ashok Leyland Finance A Division of Indus Land Bank Ltd. of Kusum Apartment O.T. Road, Inda, P.O. Inda, P.S. Kharagpur Town Dist.- Paschim Medinipur BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mr. A. Mukhopadhyay, Advocate FOR THE RESPONDENTS : Mr. N.R. Mukherjee, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed against order dated 24.12.2008 passed by District Consumer Disputes Redressal Forum, Paschim Medinipur in Complaint Case No.03/2008 whereby the complaint was dismissed.
Facts in brief are that the complainant having a transportation business purchased a truck which was registered by the Registering Authority, Motor Vehicles Department, Paschim Medinipur. The truck was insured with the OPs 1 & 2 as a goods carrier/public carrier which was valid from 19.04.2005 to 18.04.2006. The claimant hired out the said vehicle to a transporter named P. Kumar Subramanium on payment of day to day expenses of the vehicle and to settle the accounts monthly. The said P. Kumar Subramanium was responsible for engaging the truck on day to day basis. In the end of November, 2005 P. Kumar Subramanium fled with his family and he could not be traced and the vehicle was also not found. Becoming suspicious complainant lodged a complaint before the local police station. Upon investigation a final report was filed before the Ld. Chief Judicial Magistrate, Medinipur where theft was admitted but the accused persons and the stolen property could not be traced. The theft was intimated to the OP2 on 07.12.05. Claim was ultimately lodged and all the requirements of the OPs Insurer were complied with, the claim was rejected by OPs 1 & 2 by their letter. Accordingly the complainant filed the complaint before the Forum below for Rs.8,51,960/- towards the sum insured, interest and compensation of Rs.25,000/- and cost.
Heard Mr. Aloke Mukhopadhyay, the Ld. Advocate for the Appellant and Mr. N.R. Mukherjee, the Ld. Advocate for the Insurance Company.
The contention between the parties is as to whether in the facts and circumstances of the case there was a theft of the vehicle concerned or the acts of the said transporter P. Kumar Subramanium amounted to criminal breach of trust as the complainant voluntarily handed over possession of the vehicle to the said transporter.
A copy of the policy has been handed over which shows that the Insurer undertook to indemnify the insured against loss or damage to the vehicle insured and or its accessories by burglary, house breaking or theft. Therefore, only in case of a burglary, house breaking or theft the loss or damage was covered by the said insurance policy and not if loss or damage occurs by an act of criminal breach of trust. We have perused the Sections 378 and Section 405 of the Indian Penal Code to consider the ingredients of two offences. The expressions theft, burglary and house breaking have not been defined in the Insurance Act. So the meaning of these words in the Indian Penal Code has to be ascertained though proof of such charges are not of the level followed in the criminal cases.
In a case when a vehicle was taken away by some identified persons in guise of hiring it, along with its driver appointed by insured, it was held by the Honble High Court at Gowhati in the case of Rahul Das-Vs-Oriental Insurance Co. Ltd. reported in AIR 2008 Gowhati 180 that there was a theft of the vehicle.
In the above circumstances we are required to consider as to whether in the present facts the case is covered by the terms of the policy as quoted hereinabove. Admittedly the vehicle was owned by the complainant and was given by him to a transporter against payment. Such arrangement was long term arrangement as appears from the terms of agreement providing for monthly accounting. Therefore, on such removal of the vehicle by the said transporter with whom the complainant kept the vehicle in question raises the question whether the same amounts to criminal breach of trust or is a case of theft. In our opinion when trust was reposed on the transporter by the complainant allowing him to keep possession of the vehicle for substantial period when the complainant as the owner did not have physical possession of the vehicle for a long period, the taking away of the vehicle by the said transporter does not amount to theft within the meaning of Section 378 of the Indian Penal Code and it is covered by Section 405 of the Indian Penal Code defining criminal breach of trust.
The judgment in the case of Rahul Das (Supra) did not consider the aspect of complainants delivery of possession of the vehicle to the transporter for carrying on business with the vehicle against periodical payments to complainant.
The cases of Smt. Dipali Chattopadhyay-Vs-New India Assurance Co. Ltd. (2004)1 TAC 128, Saroj Kr. Biswas-Vs-National Insurance Co. Ltd. (2008)3 WBLR 169 and National Insurance Co. Ltd.-Vs-Nitin Khandelwal 2008 (7) SBR 63 have no application in the present facts.
The case of Pt. Rama Nanda Sastri-Vs-Oriental Insurance Co. Ltd. 1998(3) CPR 1 is also a case where paid employee of the insured had stolen the vehicle.
The cases of paid employee causing theft of the vehicle is different from the case where the insured delivers possession of vehicle to a transporter to carry on business with the vehicle for a long period of time.
A question was raised by the complainant/appellant as to whether for ascertaining the meaning of the expression theft, its definition in Section 378 of the Indian Penal Code should be looked into or the dictionary meaning should guide. The Honble Supreme Court in the case of Civil Appeal No.6113 of 2000 National Insurance Company Ltd.-Vs-M/s. Ishar Das Madan Lal decided on 20.02.2007 considered the definition of theft and Criminal Breach of trust as given in the Indian Penal Code. Thereafter considered the meaning of the word entrustment from dictionaries as it has not been defined in the Indian Penal Code. Following several judgments of the Apex Court the law as has been explained by the Apex Court in the said case of Ishar Das Madan Lal (Supra) we hold that entrustment of the vehicle by the complainant amounted to only criminal breach of trust and not theft.
In the circumstances policy itself only covering the cases of burglary, house breaking and theft and the vehicle having been lost by reason of criminal breach of trust and not theft, the Insurer is not liable to make payment for such loss of the vehicle under the said policy.
Therefore, the appeal fails and is hereby dismissed.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER (L) MEMBER PRESIDENT